- (1.) THESE are two connected writ petitions under Article 226 of the Constitution of India. The petitioners in the two cases have taken a lease of lime-stone quarry situate at Bhitarli in the District of Dehradun. The lime which is taken out of the quarry is taken to the railway station of Dehradun in trucks. While going from the quarry to the railway station the trucks have to pass over a road within the limits of the Cantonment Board of Dehradun. The Cantonment Board has erected barriers for the purpose of realising toll on the trucks passing through the Cantonment Area. The petitioners challenged the validity of the toll levied on their vehicles. They filed an appeal which was dismissed by the Additional District Magistrate (Judicial) Dehradun. They thereupon filed a suit for an injunction restraining the Cantonment Board from realising the toll but the suit was also dismissed. They have, therefore, filed these petitions. They pray that a writ, order or direction in the nature of certiorari be issued, quashing the notification No. S. R. O. 369 dated 1st of November, 1963, sanctioning the levy of toll tax under section 60 of the Cantonments Act. The further prayer is that a writ or direction in the nature of mandamus be issued directing the respondent Board not to realise toll tax from the petitioners on goods and laden vehicles in transit.
(2.) IT has been contended by the learned counsel for the petitioners that the word toll presupposes the rendering of some service by the authority realising the toll and as the Cantonment Board renders no service, what has been levied by it is not toll. There is no allegation in the petition to the effect that the Cantonment Board renders no service. The relevant paragraph is number 3 which reads thus : " 3. That as such while transporting the lime-stone from the quarry of the petitioner the Trucks have to pass through the limits of Cantonment Board Dehradun. But they are never loaded or unloaded within the Cantonment Board limits. They merely pass through the Cantonmenl Board to their destinations outside it, that too on M. E. S. Road and not on any road of the Cantonment Board. " All that has been alleged is that the road is M. E. S., Road and not a road of the Cantonment Board. The reply to paragraph 3 of the petition is to be found in paragraph five of the counter affidavit Paragraph five of the counter affidavit reads as follows : " That in paragraph 3 of the writ-petition it is only admitted that some limestone trucks do pass through the limits of cantonment Board Dehradun Rest of the paragraph is not admitted. The road referred to as the M. E. S., Road is within the Cantonment Board limits. " It will thus be seen that there is no assertion by the petitioners to the effect that the Cantonment Board renders no service. This question arose in Hindustan Vanaspati Manufacturing Co. Ltd., v. Municipal Board, Ghaziabad, AIR 1962 All 25. The facts were that the appellant Companys premises at Gaziabad were situate within the limits of the Ghaziabad Municipal Board. The Board claimed that it was entitled to levy a toll under section 128 of the U. P. Municipalities Act, 1916, on the railway wagons bringing supplies to the appellant companys factory and to collect the amount thereof from the appellant company. The latter disputed its liability to pay. There were certain criminal proceedings started against the appellant company and eventually a writ petition under Article 226 of the Constitution was filed in this Court. Mootham, C. J., was of the opinion that the tax in question was not a toll. Raghubar Dayal. J., took a different view and the matter was eventually laid before A. P. Srivastava, J., to whom the following question was referred for answer : " Whether the tax which the respondent-Board is seeking to impose on the appellant is a toll. "
(3.) THE argument was that there must be some quid pro quo or consideration to support the levy. A. P. Srivastava, J., agreed with Raghubar Dayal J., and held that the levy in question was toll. He said this : " The contention that some sort of consideration is necessary to support the levy of tolls is correct. Judicial authority on this point is so overwhelming that it is not possible to dispute this proposition. The right to levy a toll is based either on a grant or has been acquired by prescription Ordinarily in order to justify a toll it is necessary to aver and prove the existence of some consideration. If, however, the right had been exercised from time immemorial its legal origin as well as consideration may be presumed Similarly if the right has been granted by statute the consideration may be mentioned in the statute itself and can even be presumed even if it is not so mentioned because the Legislature would not have granted the right unless there was some consideration to justify the grant. Usually the consideration is some amenity, service, benefit or advantage which the person entitled to the toll undertakes to provide for the public in general or the persons liable to pay the toll Sometimes the consideration may be traced to ownership or jus dominii Permission by the owner of the land for the use of his land for any purpose may therefore, be sufficient consideration if the person charging the toll is the owner. If the benefit or advanage which is the consideration is made available it is not necessary for incurring the liability to pay the toll that the benefit or advantage should actually be utilized. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - " In respect of a toll of a particular kind, certainly, it can be said that it can be imposed only if the particular benefit or service for which it was authorised was provided. Thus, in respect of a market toll it can be said that it can be payable only if the facilities of a market are provided. In respect of a stallage toll it can be urged that it is payable only by the person who sets up a st All. A fair toll can in the same manner be realized from a person who attends the fair. But when the statute authorises a municipal corporation to levy tolls without specifying that it is to be levied in respect of a particular service rendered or benefit provided it cannot in my opinion be said that for every toll sought to be levied some specific benefit or advantages must be provided. Under the Municipalities Act the Municipal Board was enjoined to provide all sorts of advantages, conveniences and facilities. These duties have been enumerated in section 7 of the Act. Its discretionary functions are mentioned in S. 8. All these duties and functions could not be performed without funds. It was therefore, necessary to authorise the Board to impose taxes of different kinds, including tolls. That was the purpose with which section 128 of the Act was enacted. Some of the taxes were to be imposed for specific services rendered and in respect of such taxes restrictions on the power of imposition were provided in sections 129 and 130. There was nothing either in the Government of India Act or in the Constitution which required the State Legislature if it was imposing a toll itself or was authorising the municipal boards to impose a toll to prescribe that the imposition could be made only for specific services rendered or advantages provided. There appears to be nothing which could debar the Legislature from empowering the boards to levy general tolls in consideration of the advantages, services and benefits which were to be provided to every one under the provisions of the Municipalities Act. Had it been the intention that tolls could be levied only for specific services or benefits to be provided, there would have been some provision to that effect in Municipalities Act. Such a provision cannot be held to exist by implication simply because of the use of the word "toll." In the absence of any restrictions, therefore, it appears to have been open to the respondents to levy tolls under section 128 even in consideration of the general amenities provided in the city." ;